Life and art converged in Washington DC when the Senate Judiciary Committee was in session for hearings (July 13–16)) that would determine whether President Obama’s nomination of Judge Sonia Sotomayor as the country’s next Supreme Court justice should go to the entire Senate for discussion and a vote. If the full Senate confirms her by a simple majority, she will be the first American of Hispanic origin and only the third woman to be elevated to the Supreme Court bench.
Eighteen years ago, the committee was also in session over a Supreme Court nomination, and those hearings were riveting. President George H. W. Bush had nominated Clarence Thomas, an African-American judge of the federal Appeals Court, to fill the vacancy created by the death of the loved and respected Thurgood Marshall. The Thomas nomination seemed well on the way to committee endorsement when allegations of sexual harassment by his former colleague, Anita Hill, burst on the committee with explosive force.

The US, certainly, but judging from media coverage a large international audience/readership as well, seemed to be focusing on the charges and their potential impact on Thomas. He was called back for an additional session which included witnesses supporting Hill’s version of events and others who supported Thomas.

Within a matter of hours after that session of the committee’s hearing ended, the widely watched comedy program “Saturday Night Live” (nominated this week for an Emmy award) screened a hilarious but obviously fake version of the hearing.

Sen. Paul Simon: Well, you know when you walk in the main entrance of the Criminal Justice Building.. there's this receptionist with short brown hair?

Judge Clarence Thomas: The, uh.. one at the third desk on the left?

Sen. Paul Simon: No, no. The one at the big, circular desk, uh.. right there in the center there.

Judge Clarence Thomas: Oh, yes - Sandy.

Sen. Paul Simon: Yes. Sandy. Um.. do you think that she'd go out with me?

Judge Clarence Thomas: Well, Senator Simon, not knowing your technique, I feel that it would be unfair for me to prejudge yourchances with her.

So where’s the convergence? Well, at that comedic session of the committee in 1991, the role of the enormously respected senator from Chicago Paul Simon was played by a brilliant comedian, Al Franken. And in 2009, there was the same Al Franken, seated with due solemnity as a member of the real-life Senate Judiciary Committee at the Sotomayor hearings. He is now a Senator from Minnesota.

(Thomas went on to be confirmed by the Senate in 1991 and continues to
serve on the Supreme Court.)

Given the current Democratic majority in the Senate it was widely anticipated that Sotomayor would be endorsed by the committee and confirmed by the Senate at least by a party line vote. However inevitable the outcome of the process might be, no part of the process is optional. Nominations to over 2000 high-level government positions statutorily require Senate scrutiny and confirmation.

The Congressional Research Service of the Library of Congress points out that “the role of the Senate in the confirmation process is defined by the Constitution. Article II, Section 2 provides that the President ‘shall nominate, and by and with the Advice and Consent of the Senate, shall appoint high government officials.’ All positions requiring confirmation are set by statute.”

These positions, commonly known in popular “shorthand” as “confirmation positions,” include Cabinet Secretaries (ministers) Supreme Court justices, ambassadors, federal judges, senior positions in government departments and agencies, and members of regulatory commissions. Nominations to the Cabinet and to the Supreme Court, given their responsibilities and reach, receive the most scrutiny and the most public attention. Hearings on Supreme Court nominations are particularly a matter of public interest because these are lifetime appointments.

President Obama’s nomination of a Hispanic woman as his first Supreme Court nominee was generally welcomed, although it was predictably derided by some conservatives.

Her personal story reads like a case study of how talent can combine with determination to overcome adversity. She was born in the Bronx area of New York, at best an unpredictable region in which to live. Her father died when she nine and she was raised by her mother. The family lived in low cost housing, and she made a major effort, growing
up, to do well in her studies. She gained admission to Princeton University where she obtained her first degree, graduating “summa cum
laude.”

Peter Winn, one of her professors at Princeton and a mentor, says of her: “She was not the best student I taught in my seven years at Princeton – though she certainly was high on the list – but she was the one who took greatest advantage of the opportunities there and emerged most transformed by her experience.

From Princeton she went on to Yale Law School where, as a student, she was an editor of the Yale Law Journal. She received her law degree (Juris Doctor) at Yale, and worked as an assistant district attorney in the New York County District Attorney's Office before moving into private practice. She has taught at New York University’s School of Law and at Columbia University’s Law school.

After several years in private practice she was confirmed as a judge on the U.S. District Court for the Southern District of New York, on being nominated by President George H.W. Bush. Some years later, President Bill Clinton nominated her to serve on the U.S. Court of Appeals for the Second Circuit. She was confirmed to that position, and continues to serve on the Appeals Court where she has heard over 3000 cases and personally written over 300 judgments.

Her nomination to the Supreme Court received the strongest possible endorsement from the American Bar Association, a nationwide institution.

If she was being tested by the Judiciary Committee on merit alone, the hearing should have been over in less than a day, and her nomination should have been confirmed by acclamation. But that’s not exactly how it happens. Quite apart from the somewhat tortuous structure of committee proceedings, there is more at stake than the obvious competence of a candidate. Raw politics is involved, even though attempts are made to conceal political motivations behind a veneer of constitutional propriety.

Criticism came at the committee was led by Senator Jeff Sessions of Alabama. Ironically, Sessions is the only member of the current Houses of Congress who has failed to win committee endorsement for a judicial appointment. President Ronald Reagan nominated him in 1986 for a position on the federal appeal court, and the nomination was killed
by the Senate Judiciary Committee. At that time, his critics accused Sessions of "gross insensitivity” on racial issues. He is now the leading Republican on that committee. Criticism of Sotomayor came from outside the committee as well with the Nobama-Obama crowd venting their frustrations by opposing her nomination on bizarre allegations. She was called a racist and even a terrorist.

Both at the hearing and outside, it was clear that in confronting or challenging Sotomayor, some critics were actually telegraphing messages to Obama. They were laying down markers to show the outer limits of their acceptance if, in future Supreme Court nomination, he picked liberals “outside the mainstream” in an effort to neutralize the court’s current conservative majority.

At the hearing, Sotomayor was the target of barely concealed racist innuendo. She was told that she would have”some splaining to do,” a stereotype of Latin-English pronunciation. Reference was made to her temperament, as if she was a “hot-blooded Latina” (another stereotype) lacking the required “judicial temperament” who would pick up her
robes and do the salsa up the steps of the Supreme Court. She was even asked to do some “reflecting,” much as a crusty school teacher would address one of his hyper-active pupils.

Most of all, however, she was repeatedly – over and over and over again – taken to task for having said in a speech that “a wise Latina judge” would perhaps reach better decisions than a white male. She patiently pointed out that in her comment she was trying to “inspire young Hispanics, Latino students and lawyers to believe that their life experiences added value to the process” – not formulating her judicial philosophy.

No matter. Although she has a substantial record of judicial decisions to her credit, only a handful of these were discussed with the focus instead being on her “wise Latina” comment. She acknowledged that it was a “rhetorical flourish that fell flat.”

Sotamayor conducted herself with such intellectual discipline, charm, and composure that even her critics could not fail to be impressed. At the end of the hearing they heaped praise on her and undertook to do nothing to delay the confirmation process. The committee will meet next Tuesday, July 21 to review her nomination and is likely to vote on it the following day, with a vote in the full Senate expected in the first week of August.

If the current momentum holds, Sotomayor will be confirmed with several Republicans adding to her Democratic votes, diversity on the Supreme Court will be strengthened, and she will have many opportunities to demonstrate whether Obama was correct when he said in a letter to supporters: “In Judge Sotomayor, our nation will have a Justice who will never forget her humble beginnings, will always apply the rule of law, and will be a protector of the Constitution that made her American dream and the dreams of millions of others possible.”